Abusive treatment of auto executive threatens the Japanese legal system

A prominent business executive has been arrested on suspicion that he may have underreported his deferred compensation to the government. He has been interrogated without his lawyers being present and has been held in a detention center for more than two weeks without being formally charged with any crime. His detention has now been further extended.

His access to a lawyer is strictly limited to short daily meetings, and his lawyers are forbidden to attend interrogation sessions. Visits by family members are not permitted. He will not be given bail unless he admits his guilt, and he may be detained for as long as 22 days without being charged with any crime. At the end of this initial period, he may be arrested again on suspicion of another uncharged crime and held for an additional 22 days. This process may be repeated, and he detained for months with no formal charges or more information on the accusations.

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Human rights groups such as Amnesty International and Human Rights Watch have criticized the length of permissible detention in this country, and the prohibition against lawyers being allowed to attend interrogation sessions, as being too conducive to extracting confessions by abusive tactics. These tactics have contributed to what the Economist has described as rising “false convictions” that have been brought to light in recent years. These police and prosecutorial tactics are all too typical of authoritarian regimes such as Iran, Cuba, China, Russia and Turkey.

But the arrest and detention above is taking place in a democratic ally of the United States. This country is Japan.

The detained suspect is Carlos Ghosn, one of the most distinguished business executives in the world, who served as chairman of Nissan, Renault and Mitsubishi. I learned of this only after talking with his lawyer, researching the troubling facts for myself and arriving at my own conclusions. His arrest may have grown from a business dispute with Hiroto Saikawa, the current chief executive officer of Nissan, about a merger reportedly proposed by Ghosn between Nissan and Renault, but which apparently was opposed by some Japanese government officials, Nissan employees, and Saikawa.

Instead of resolving this dispute civilly, opponents seem to have gotten prosecutors to arrest Ghosn, who has now been in detention since Nov. 19, the day his private jet landed at Haneda Airport, where he was interrogated and whisked away by Japanese police. The media apparently was alerted to the arrest in advance and were waiting for his arrival at the airport.

It is shocking that Japan, which purports to be committed to the rule of law, would employ such ruthless tactics against a business executive in his sixties who poses absolutely no danger of harming anyone or of fleeing the jurisdiction. There is simply no good reason why Ghosn should not be allowed bail while prosecutors decide whether to charge him with any crime. Nor is there any good reason for denying him the fundamental right to have his lawyers in the room while he is being interrogated.

Yet, Japan persists in employing discredited police and prosecutorial tactics designed to elicit confessions, many of which will be false. As many as 10 percent of those convicted of crimes by Japanese authorities may be innocent, according to one estimate. These brutal tactics are especially troubling in the context of the Ghosn case, which may in the end not involve crimes at all but rather a high-stakes economic and ethnic dispute between Japanese xenophobes and a foreign executive who is seeking, according to reports, to increase the influence of French car company Renault over the Japanese automakers. Ghosn was born in Brazil, raised in Lebanon, and moved to France when he was a teenager.

If Japanese prosecutors really believe that Ghosn has committed any financial or other crimes, then let them issue formal charges against him and allow him to remain free to consult with his lawyers and to prepare his defense. Keeping him in detention, away from his family, friends and lawyers in a crass effort to extract a confession, even a false one, is much more typical of totalitarian regimes than of free market democracies.

The ultimate losers here, beyond Ghosn, may be the Japanese economy and its legal system. Unless the country changes its ways of dealing with disputes of this kind, foreign executives may understandably be reluctant to submit to the jurisdiction of a legal system that is so unfair and risky.

I would advise a client to be wary of doing business in a country that has so little respect for basic principles of due process and the rule of law. If Japan were seeking the extradition of a client for an alleged white collar crime, I would strongly resist the request on the grounds that the criminal justice system there does not meet the standards required for extradition.